' ' I LlBHAiiY OF CONGRESS. I 

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# — # 

I UNITED STATES OF AMERICA, f 



A LETTER 



Hon. benjamin R. CURTIS, 



LATE JUDGE OF THE 



'iijj]r,emi &mtt 0I tl^ lliit^il ^tati!^. 



IN REVIEW OF niS RECENTLY PUBLISHED PAJVIPHLET 



EMANCIPATION PROCLAMATION'' 

OF THE PRESIDENT. 



By CHARLES P. KIRKLA9fD, 

OF NEW YORK. 




NEW YORK : 
LATIMER BROS. <fe SEYMOUR, LAW STATIONERS, 21 NASSAU ST. 

1862. 



To the Honorable Bicnja:min^ R. Curtis, late Associate Justice of 
the Supreme Court of the United States. 

I propose, respectfully, but with perfect frankness, to review 
yonr recently published pamphlet on the subject of the Presi- 
dent's "Emancipation Proclamation" of September 22d, 186':?. 

This would have been done at an earlier day, but it is only 
very recently that I first saw the pamphlet. 

It is to be regretted that, regarding — as you profess to do — 
this proclamation and that of the 24th of the same month, as 
fraught with peril to your countrymen, you did not treat them 
separately. They differ radically and essentially in subject and 
in intent. The one is limited in its application to the rebel 
States, the other applies equally there and here. The one in- 
volves ultimate results and consequences of the most important 
and enduring character ; the other is, in its very nature, tem- 
porary. The one gives rise to considerations of a kind wholly 
different from, and irrelevant to, the other; yet your pamphlet 
so confuses them together, that it is quite difficult, if not impos- 
sible, to discover what, in your view, is the distinguishing fatal 
error of each. Justice to the subject, which you declare to be 
of such momentous import ; justice to the Head of this great 
nation, whose acts you arraigu as bordering on, if not actually 
amounting to, the crime of usurpation ; justice to the elevated 
position you so recently occupied, required that you should at 
least have pointed out separately, distinctly, and in the most 
lucid manner, the grounds on which you base a charge of such 
magnitude. Instead of that, we have here (to use a legal term 
with which you are familiar) a complete " hotch-potch." These 
different and distinct matters are thrown indiscriminately to- 
gether ; and, in many instances, no ingenuity can determine 
whether your argument, your illustrations, your depracatory 
expressions, apply to the one proclamation or to the other. 



But at present I shall, so far as I can, ascertain from your pam- 
phlet the specific complaints you make as to the " em.ancipa- 
tion proclamation," and, if I err in attributing to yon allegations 
as to this, which you intended solely for the other, my error 
will, I trust, find an apology in the mode yon have adopted of 
treating the two subjects. 

Before going farther, I may be pardoned for imitating your 
example, and saying a word personal to myself. In some essen- 
tial particulars, I stand in the same position you state yourself 
to occupy. I, like you, " am a member of no political party." 
" I withdrew,'' as you did, " some years ago, from all such con- 
nections." I have generally, however, exercised my privilege 
as one of the electoral body : and at the last presidential elec- 
tion I voted against the present incumbent, and at the last 
State senatorial election I voted for the democratic candidate in 
my district. 

I, like you, " have no occasion to listen to the exhortations 
now so frequent to divest myself of party ties, and act for my 
country." I, too, "have nothing but my country for which to 
act in public affairs," and with me, too, " it is solely because 
I have that yet remaining, and know not but it may be possible 
to say something to my countrymen, which may aid them to 
form right conclusions in these dark and dangerous times that 
I now (through you) address them," and make the efi'ort to aid 
them in " forming right conclusions" as to yonr views, and the 
subject of which you treat. Thus, my work, like yours, is 
purely " a work of love." 

It may not be amiss to say, that there are, in fact, but two 
parties in our country ; one that is for the country, the other 
tliat is against the country. To the former belong the vast 
majority of the Democratic party and the vast majority of the 
Republican party, and the few (alas ! so few) Unionists of 
the South ; to the latter belong the fanatical abolitionists in the 
Eepublican party, the rebel sympathisers in the Democratic 
party and the Rebels of the South. To the party of my country 
belong, I say, the great majority of both the Democratic and 
the Republican parties; in other words, the vast majority of 
the " People" of the United States — I say so, because I cannot 
be persuaded, that that majority, by whatever par^y name the 



individuals composing it may be called, are insensible to the 
blessings of tbe form of government under which they live, un- 
aware, and ignorant of the indispensable importance of the pre- 
servation of the Union to their existence as a nation — forgetful, 
basely, ungratefully forgetful, of the heroic struggles and sacri- 
fices of tlieir Revolutionary ftithers — deaf and dead to the earnest, 
paternal farewell advice and warnings of Washington, lost to all 
sense of patriotism, and of public virtue. And as to the millions 
from other lands, who are now " of us and with us," who have 
sought and found shelter and protection, and happiness in our 
Temple of Liberty, and who with such gallantry have recently 
fought the battles of "The United States of America," and who 
individually belong to the Democratic or the Republican par- 
ties, I cannot believe that these men, whether as individuals 
they may be called Democrats or Republicans, will ever con- 
sent to the overthrow of that Temple, or to the breaking up of 
those " United States." But notwithstanding this perfect con- 
viction of mine, it is nevertheless, as you say, not out of place 
for you or for me, or for any others who choose to undertake 
the task, to "say something that may aid our countrymen to 
form right conclusions in these darh and dangerous" (as you 
call them) " times." 

These words, "dark and dangerous," in the connection in 
which you use them, lead me to say another preliminary word 
before coming directly to your argument. 

These words assure me, that you belong tr> ihat class of men 
among us, not large in number but sonieti.'nes influential in 
position, who, from natural temperament and disposition, or 
from aversion to strife of all kinds, or from a Avant oi 'proper 
appreoiation of the ^^eal character of this rebellion, (I think 
chiefly from the latter cause), honestlj' labor under a fearful 
distrust or a gloomy foreboding as to the result of the impend- 
ing contest for the preservation of our glorious government and 
of our blessed Union. I do not lelong to that class of men. I 
do not now believe, fear, nor apprehend, and never for a moment 
have believed, feared, or apprehended that a crime, such as this 
rebellion, a crime against the Almighty and against humanity, 
wholly witliout a parallel for enormity in the world's history 
and the iniquity of which can scarcely be expressed in any Ian- 



6 

ijuage known to us, I do not, I say, believe tliat such a crime 
will be jierinitted to bo carried to a successful end, so lon<^ as 
" God sitteth on the throne judging right," nor until Truth shall 
cease to prevail over error, reason to triumph over delusion, 
and Kiglit to overcome "wrong.* On the contrary, I look with a 
clear faith and a cheerful confidence to the termination of this 
rebellion at no remote period, and to such a termination as will 
show to an admii-ing and approving world that this government, 
confessedly the most beneficent, is at the same time the most 
firm and enduring to be found on earth. 

To proceed to the examination of your ai'gument : 

The first observation I have to niake is, that throughout your 
paper you treat the p»roclamation substantially as if it were a 
proclamation of «J5oZ«25e emancipation in the rebel states ; that 
is, were it such a proclamatio7i.i your argument would be ?*n 
substance the same it now is. 

Again, in your copy of it you entirely omit the clause in 
reference to compensation ^ and it will be found that a portion, 
and no immaterial portion, of your argument, is based on the 
non existence of the conditional and compensatory parts of the 
proclamation. It is very clear, that a proper regard to truth 
and fiiirness would have required a conspicuous place in your 
paper for these two distinguishing features. 

With tliese omitted or practically concealed, you could by no 
possibility attain the object you profess, namely, " the aiding 
vonr countrvmen in foninnG; rlqld conclusions." 

A fatal error undeilying your whole argument is, that in 
substance and effect you treat and argue this matter precisely 
as vou would have done had there beeii no rebellion and oio 



* In speaking of tlie crime of this rebellion, tlie difference in a moral point of 
vieAV between the leading conspirators and the bodi/ of the people oi the South en- 
gaged in it should carefully be kept in view. The former are to be execrated, the 
latter to be pilled ; and •while the practical eflfects of the wickedness of the one 
and of the delusions of the other, combined in action as they are, are the same, 
yet we are never to cense to draw the moral distinction just mentioned. Any one 
who desires to know the secret and real causes of the Rebellion, the motives and 
ends of the arch-conspirators, who originated it, will be gratified and instructed by 
a perusal of the article entitled " Slavery and Nobility, vs. Democracy," in the July 
number, 1862, of the Continental Monthly. 



war' ; had the country boon at peace; had you prepared and 
published your viewa in November, 1859, (if a similar procla- 
mation had been then issued). You tlirow the veil of oblivion 
ovei* the last two years ; you ignore the events, that have 
occurred during that period and the state of things existing in 
the country on the 22d of September, 1862. 

Though you wholly disregard it in your argument, yet you 
forcibly describe the status of the country on the day of its date. 
You say, " The war in which wo are engaged is a just and 
'iiecessarij war. It must be prosecuted with the whole force of 
this government, till the military power of the South is broken 
and they siibmit themselves to their duty to obey and our rigid 
to have them obey the Constitution of the United States as the 
supreme law of the land." You thus affirm that, at the date of 
that proclamation, we were and now are engaged in a war., a 
just and necessary war — a war that must he carried to a 
success/id termination by the exercise of the whole force and 
power of the government. You might justly have added, that 
it is a war infinitely worse, on the part of the rebels who caused 
it, than a war w^ith an}^ foreign nation could be, in its incep- 
tion ; in the mode of its conduct by the rebels ; in the motives 
of its originators, and the ends sought to be accomplished by it" 
It was tlien by necessary consequence a war, in which all the 
means — and more than the means — we might legitimately re- 
sort to -/.'i a foreign war might and oi^^/i^ to be used and ren- 
dered available to the utmost practicable extent consistent with 
the rules of civilized warfare. 

What, then, if we were at war with a foreign nation immedi- 
ately on our borders, and that nation had within its bosom mil- 
lions of slaves ? Can any one, versed in the slightest degree in 
the principles of the law of nations and the laws of war, for a 
moment doubt our right to declare and proclaim freedom to 
those slaves, in case that nation did not discontinue that war 
within a prescribed period ? 

It may be asked what would be the utility, the practicalnesH 
of such a proclamation? I answer in your own words, " I do 
not propose to discuss the question whether this proclamation 
can have any practical etfect on the unhappy race to whom it 
refers, nor what its practical consequences would be on them 



and on the white population of the United States." You dis- 
cuss and I discuss simply the constitutional right and power 
of the President under existing facts to issue that proclama- 
tion. 

We, in this discussion, are to assume that, in the contingency 
stated in it, it will go into actual operation as intended. Then 
we are to inquire what the practical efl^ct of its thus going into 
actual operation would be, not on the black nor the white race, 
but on the wm^ the rebels have declared and are carrying on. 
It requires but a very limited knowledge of facts to answer this 
inquiry. If any one foct is demonstrated with perfect clear- 
ness in this contest thus far, it is, that the slaves in the states in 
rebellion have furnished to those states means indispensable to 
them for carrying on and sustaining the contest on their part.* 



* Thousands of illustations of the truth of this statement might be given. Take 
this one: On the second day of November, 1862, Gov. Brown, of Georgia, " Com- 
mander in Chief," issued this edict : 
To the Planters of Georgia : 

Since my late appeal to some of you, I am informed by Brig.-Gen. Mercek, com- 
manding at Savannah, that but few hands have been tendered. When the impress- 
ments made by Gen. Mercer, some weeks since, were loudly tiomplained of, it 
was generally said that, while the planters objected to the principle of impress- 
ments, they would promptly furnish all the labor needed, if an appeal were made 
to them. I am informed that Gen. Mercer now has ample authority to make im- 
pressments. If, then, a sufficient supply of labor is not tendered within ten days 
from this dale, he Avill resort immediately to that means of procuring it with my 
full sanction, and I doubt not with the sanction of the General Assembly. 

After you have been repeatedly notified of the absolute necessit;;^ for more labor 
to complete the fortifications adjudged by the military authorities in command to 
be indispensible to the defence of the key to the State, will you delay action till 
you are compelled to contribute means for the protection, not only of all your 
slaves, but of your homes, your firesides and your altars * 

I will not believe that there was a want of sincerity in your professions of liber- 
ality and patriotism when many of you threatened resistance to impressment upon 
principle, and not because you were unwilling to aid the cause with your means. 

I renew the call for negroes to complete the forlilications around Savannah, and 
trust that every planter in Georgia will respond by a prompt tender of one-fifth 
of all his working men. 

As stated in my former appeal, the General in command will accept the number 
actually needed. 

JOSEPH E BROWN. 

The Governor, ii will be saen, calls for " one-fifth of all the working (slaves) 
men." The slave population in Georgia, in 1860, exceeded 462,000; it is not an ex- 
aggerated estimate, that one in six of that population is a " working man ;" this one- 
sixth is more than 77,000, and one-fifth of that number is upwards of 15,000. The 
call is therefore for 15,000 " working men," and this too in a single State, and for 
a limited purpose. And yet we have not the ri(/hl to try to reader unavailable to 
the " enemy," this powerful force ! 



9 

Without the agricultural and domestic labor of the slaves, tens 
of thousands of whites, who have been and now are in the 
rebel arnn^, could not have been withdrawn from the cultiva- 
tion of the ground, and the various other pursuits requisite to 
the supply, for that whole region, of the actual necessaries of 
life. Witliout the slaves, their numerous and extensive earth- 
w^orks, fortifications, and the like, their immense transportation 
of military stores and munitions, a vast amount of labor in 
camps and on marches (to say nothing of the actual service as 
soldiers, said in many instances to have been rendered by 
slaves), could by no possibility have been accomplished. 

The intent and design of the proclamation, its actual effect, 
if it has its intended operation, is to forever deprive the "en- 
emy" of this vital, absolutely essential, and, as I have just said, 
l7idispenscd)le, means of carrying on the war. In reason, in 
common sense, in national law, in the law of civilized war, 
what objection can exist to our using our power to attain an 
end so just, so lawful, and I may say so beneficent, and so hu- 
mane, as thus depriving our " enemy" of his means of warfare? 
I do not believe that you, on more mature reflection, will deny 
the truth of what I have just stated. 

But you say, " grant that we have this power and this right, 
they cannot be exercised hy the President^^ and for the exer- 
cise of this power, he is charged by you with " usurpation." 

A few considerations will show the fallacy, the manifest un- 
soundness and error of your views and arguments on this point 
I may, in the first place, remark that tlie very title of your 
pamphlet, " Executive Poxoer^'' is a " delusion and a snare." 
The case does not give rise to the investigation of tlie Presi- 
dent's " executive power," The word " executive," manifestly 
and from the whole context of the Constitution, has reference 
to the civil power of the President, to his various civil duties 
as the head of the nation, in " seeing that the laws are exe- 
cuted " — to his duties in time oi jpeace, though of course the 
same "executive" duties still continue in time of war; but 
to them, in that events are superadded others, which, in no just 
or proper sense, can be termed " executive," but which pertain 
to him in time of war as " Commander-in-Chief These latter 
duties are provided for by the letter and by the si)irit of other 



10 

provisions of the Constitution, by the very nature and necessity 
of the case, by the first law of nature and of nations, the law of 
self.2wesermtion. What is the meaning and intent of the con- 
stitutional direction to the President, '• that he shall preserve, 
protect, and defend the Constitution,^^ unless in time of war he 
can do so in his capacity of " Commander-in-Chief," unless in 
time of war, he shall have the power to adopt and carry out as 
to the enemy such measures as the laws of war justify, and 
as he may deem necessary. Is the Constitution designed 
to do away these laws, and render them inapplicable to our 
nation — in other words, is the Constitution a felo de se ? It 
cannot be denied, that in time of war, at least, the President, 
while in a civil sense the " executive" is at the same time the 
military head of the nation — " the Commander-in-Chief" — 
and as such Ms " command" is necessarily co-extensive with the 
country. 

I cannot, on this point, quote anything more true and more 
apposite than a paragraph of your own. "/?i time of loar, 
without any special legislation, the (our) Commander-in-Chief 
is lawfully empowered hj the Constitution and laws of the 
United States to do whatever is necessary and is sanctioned hy 
the laws of war to accomplish the lawful objects of his command.''^ 

This is, undoubtedly, the constitutional law of the land, and 
being so, it of necessity upsets and overturns all your objections 
to the proclamation in question. The "lawful object" of the 
President at this moment is to preserve the Constitution by 
putting an end to this rebellion. In order to do this, it is 
necessary to deprive the rebels of their means of sustaining the 
rebellion — one of the most effective and available of those 
means, as just shown, is their slaves; the intent and object of 
the proclamation are to deprive them of those means. The so 
depriving them " is sanctioned by the laws of war," and, con- 
aequently, this act of the President is, within your own doc- 
trine, perfectly legal and constitutional. 

The same argument which you make against presidential 
power was made in Cross v. Harrison, 16 Howard, 164, in the 
Supreme Court of the United States, in a case occurring during, 
and arising out of, our war with Mexico, in the judgment in 
which case you, as one of the Justices of that Court, concurred. 



11 

In that case the President-, without any specific provision in the 
Constitution — without any law of Congress pre-existing or 
adopted for tlie occasion, created a civil government in Cali- 
fornia, established a war tariff, and (by liis agents) collected 
duties. The Court held that these acts (to use their own lan- 
guage) " were rightful and constitutional, though Congress had 
passed no law on the subject;" that " those acts of the Presi- 
dent were the exercise of a belligerent rigJit ; that they were ac- 
cording to the Jaw of arms and right on the general yrlnciples 
of war and peace," Who will allege, that the acts of the Pre- 
sident on that occasion were not, to say the least, as unautho- 
rized by the Constitution and the law as his proclamation in 
the jiresent case ? And yet you did not dissent from tlie judg- 
ment of the Court, you did not speak of those acts as acts of 
" Executive" power, for the term would have been there, as it 
is here, wholly inapplicable ; you did not then chai'ge the Pre- 
sident with usurpation. The whole case there was, as it is 
here, a case arising out of heUigerent rights and duties, out of a 
state of war ', and the President's acts were there, as here, not 
in contradiction to, and disparagement of, the Constitution, but 
consistent therewith, on the great ground that the Constitution 
nowhere repeals, but, on the contrary, from the necessities of 
its own existence and preservation, recognizes the laws of war 
\\\ Vi state of war. Similar authorities in abundance might be 
cited, but it would be a work of supererogation. 

Ic may not be amiss, however, to refer in this connection to 
tlie honored name of John Quincy Adams, on tlie very point 
now in question, namely, the constitutional right cf tiie Presi- 
dent to issue this proclamation. 

No citizen of this land will deny to Mr. Adams as perfect an 
acquaintance with the spirit and nature of our institutions, as 
minute a knowledge of the provisions, expressed and implied, of 
the constitution, and as ardent a desire to preserve them in 
their purity, as were ever possessed by any man living or dead. 
He was distinguished, too, for the most delicate moral sense, 
the purest integrity, and tlie deepest conscientiousness. I think 
no man who has taken an official oath ever felt a more earnest 
and constant desire on no occasion to violate it. Now^, Mr. 
Adams, while a member of the House of Representatives, in a 



12 



debate in the House, on an important subject, in April, 1842, 
after stating that slavery was abolished in Columbia, first by 
the Spanish General Murillo, and secondly by the American 
General Bolivar, by virtue of a 7nilitary coininand given at the 
head of the army^ and that its abolition continued to this day, 
declares that "in a state of actual war the laws of war take 
precedence over civil laws and municipal institutions. I lay 
this down as the law of nations. I say that the military 
authority takes for the time the place of all municipal institu- 
tions, slavery among the rest, and that under 2!Aa^ state of things, 
so far from its being true that the States, where slavery exists, 
have the exclusive management of the subject, not only the 
President of the United States, but the (subordinate) com- 
mander of the army has the 2^ower to order the emancipation of 
the slavcsT This is the " true saying" of a great constitutional 
lawyer, a pure patriot, a conscientious man — Indeed, I doubt 
whether any man in this country, wliose position entitles his 
opinions to any consideration, will be foynd to concur in your 
views. They are not adopted — indeed, they are repudiated by 
the most prominent leader of the Democratic party. Thus, Mr. 
John Yan Buren (in a speech before the Democratic Union 
Association of the city of New York, on the 10th of November, 
instant) said : " I never said anything in reference to that pro- 
clamation except that it was a matter of questionable expedi- 
enc3^ I have -never deemed it unconstitutional. I have never 
even asserted that, as a ^oar measure it raig-ht not have been 
expedient." It would seem idle to add more in demonstration 
of the cleai', unquestionable power o{ the President (I may sa}', 
of his solemn duty) " as commander in chief," in the exercise 
of a militai-y power, " during a state of war," to issue the pro- 
clamation in question. 

The gi'ound of objection you most prominently put forth is, 
indeed, extraordinary, and, without oft'ence I trust I may say, 
monstrous. It is no more nor less than this: "The persons who 
are the subjects of this proclamation are held to service by the 
laiDs of the States in which they reside, enacted by State author- 
ity." " This proclamation by an executive decree proposes to 
rejyeal and anmd valid State laus, which regulate the domestic 
relations of their people," and this " as a punishment against 



13 

t!ie entire people of a State by reason of the crimiiial conduct 
of a governing majority of its people." Never was more error, 
gross, pal[)able, grievous, found in a single brief paragraph. 
Mark the existing state of things. These " States" arc each 
and every of them in rebellion against their countiy and their 
Government ; they are waging against it the most bloody and 
relentless war ; they totally condemn and repudiate the con- 
stitution of their country ; they deny that it has any, the least, 
authority over them ; they are making almost superhuman 
efforts to overthrow and destroy it ; the people, as individuals, 
and the States in their corporate, municipal capacities go hand 
in hand together in this awful work, and yet you claim for 
them the i)rotection of that very constitution ; you claim the 
inviolability of their Stats laws under that constitution. You 
claim that those laws are " valid " and operative, and are to 
shield and protect, aid and assist them in their unhallowed 
attempt to destroy their country ! ! It is difficult to imagine 
under what hallucination you were laboring when you gave 
utterance to those sentiments. The bare statement of the case 
must carry to every sane mind, North and South, the instant 
refutation of your propositions. The very rebels themselves, 
to whom you offer the protection of the " constitution," would, 
with wrathful indignation, spurn the offer. 

You speak of the proclamation as a " threatened penalty " — 

as " a punishment to the entire people of a state by 

reason of the criminal conduct of a governing majority of the 
people." 

I iiave already shown, satisfactorily I trust, that the act of 
the President partakes in no sense of the character of a " pen- 
alty " or " a punishment," but is simply the exercise of his con- 
stitutional power, in a time of war, to devise and adopt and carry 
out against the enemy such measures as he may judge to be for 
the good of his country ; for the defeat of that enemy, and for 
the successful and speedy ending of " the war." You draw a 
distinction, unheard of, I imagine, till announced by you, a dis- 
tinction between the "people of a State," and the "governing 
majority " of that people ; a distinction, too, wdiich is to operate, 
in a time war, against the party with whom that " State " 
is at war ! ! I venture to say, that no writer on the law of na- 



14 

tions, no judicial tribunal, no intelligent man, has up to this 
liour, believed or stated that, in the case of foreign war above 
supposed, the " governing majority " was not to all legal and 
all practical purposes, " the State." Were the United States at 
war with any foreign power — a war sanctioned by the *' gov- 
erning majority," (as our war of 1812,) but a war wliich you 
and others (a niinorityj wholly disapproved ; and that foreign 
power adopted some war measure which would operate on " the 
entire people," of the United States, could you and your asso- 
ciates of the minority, or any principle of law, military or civil, 
of justice, of reason, or of mercy, claim exemption from the 
eft'ects of that measure ? The case supposed is precisely the 
case as it now exists between the " United States of America " 
on the one hand, and the " Rebel States and people," on the 
other. 

Again, you state as a serious, if not conclusive objection to 
the proclamation, that " it is on the slaves of loyal persons or of 
those who from their tender years^ or other disabilit}', cannot 
be either disloyal or otherwise, that the proclamation is to op- 
erate." Have your countrymen at this hour, to learn for the 
first time, that the " sun shines alike on the just and on the un- 
just," that storms and whirlwind overwhelm at the same time 
the righteous and the wicked and that the calamities of war, 
from the very necessity of the case, fall indiscriminately on the 
innocent and the guilty, the strong and the helpless, on those 
of mature and those of " tender years?" But as to this last ob- 
jection, it lacks one material quality, namely, foundation in fact. 
That part of the proclamation, which you have so strangely, as 
observed above, omitted, provides for the case of the very per- 
sons for whom j^our sympathies are excited. It pledges to them 
compensation. I say " pledges," for it declares " tliat tiie Ex- 
ecutive will in due time recommend that all persons who have 
remained loyal, (of course including in its spirit those who 
from tender years, or otherwise were incapable of being dis- 
loyal,) shall be compensated for all losses by acts of the United 
States, including the loss of slaves.'''' No future Congress of the 
United States will be so lost to all sense of honor and obligation 
as not to pass, and no future President so degraded as not to 



15 

approve, a bill redeeming this soleinii and sacred '' pledge " of 
the Head of the nation. 

Again, you advert in no part of your argument, to the vital 
fact that this proclamation is not absolute and unconditional, 
but that it depends even for its existence iwacticalhj on the acts 
and will of the rebels themselves. If they so elect, it u never 
to go into operation^ and they have abundant time to make 
that election, namely, from the 22d of September, 1SG2, to the 
1st day of January, ISGo. But your argument, in all its essen- 
tial particulars, \fo\\\(\. have been just the same as you now 
address it to your fellow-citizens, if this proclamation had been 
absolute, had declared universal emancipation, to go into effect 
on the day of its date, and (as already remarked) had not pro- 
vided compensation to the loyal, and had been issued in a time 
of profound peace. 

You profess, in your argument, simply to examine " the na- 
ture and extent, and the asserted source of the power b}'' which 
it is claimed that the issuing of this pioclaraation was author- 
ized;" and it was "for the purpose of saying something to your 
countrymen to aid them in forming right conclusions^"^ that you 
" reluctantly addressed them." The policy, the expediency, 
the utility, the practical effects, ^er se, of the proclamation, you 
say, you do not " propose to discuss," yet you intimate, that by 
means of this proclamation, if executed, " scenes of bloodshed 
and worse than bloodshed are to be passed through," and you 
express, in no unequivocal manner, a doubt " as to the lawful- 
ness, in any Christian or civilized laud, of the use of such means 
(that is, this proclamation) to attain any end." You intimate, 
too, that " a servile war is to be invoked to help twenty millions 
of the white race to assert the rightful authority of the Consti- 
tution and laws of their country." All these direful forebod- 
ings are put forth in lialf a dozen lines, certainly not to "aid 
your fellow citizens in forming right conclusions," but through 
their sympathies and their fears to induce the concurrence of 
their reason in your views as to the power to do the act in 
question. These " givings out" of yours require a passing 
notice. 

In the first place, where is your authority for the allegations 
as to " scenes of bloodshed and a servile war ?" I am not an 



IG 

abolitionist, nor a believer in the social and political equalit}' 
of the black and white races (though I have an opinion on the 
subject of the effect of the institution of slavery on the white 
man and white woman, who have been nurtured under its 
influence, and on the question of the compatability of the 
institution with a republican form of government). I am even 
called by some a pro-slavery man. Yet I see no " scenes of 
bloodshed," no " servile war," in the event of the practical 
carrying out of this proclamation. This, however, is a mere 
matter of speculation and opinion, and while 1 freely concede 
your right to entertain your own, I claim my right to entertain 
mine. Our means of forming our opinions are the same ; we 
both have the same lights, and the result alone can show which 
of us is right. 

But, in the next place, assuming the consequences to he just 
such as you imagine, who is responsible for those consequences'? 
They cannot come, as you will admit, if the rebels return to 
their allegiance ; if they cease their unhallowed efforts to over- 
throw their government ; if they become dutiful citizens. If 
they do not, it is not your fault nor mine, nor that of our fellow- 
citizens, nor of the President, nor of the government of the 
United States — it is solely, wholly, unquestionably, their own. 

Again, you look with evident heartfelt horror at the events 
which you thus contemplate. Have you no horror, no tears of 
sympathy, no " bowels of compassion," when you reflect on the 
multitudes, the thousands of valuable loyal lives lost, homes 
grief-stricken, parents rendered childless, and children rendered 
orphans; the desolation and misery of whole neighborhoods, to 
say nothing of the enormous material destruction caused to citi- 
zens of the loyal states in this war — a war on our part, as you 
say, "so just and necessary," and on the part of the rebels so 
wicked, so wanton, so utterly causeless, and so wholly unjusti- 
fiable. Though no man of humanity could look with other 
than deep distress on the " scenes of bloodshed," and the " ser- 
vile war," you imagine (should they become realities), surely it 
cannot be believed, that tlie amount of distress and suffering, 
that would thus ensue, would equal — it surely cannot surpass — 
the distress and suffering that have already been endured by 



17 

the loyal citizens of this republic in consequence of this rebel- 
lion. 

You doubt the " lawfulness," in this Christian and civil- 
ized land, of the use of such means (as this proclamation) to 
attain any end. And has it come to this, that a distinguished 
citizen of the republic doubts, whether a proclamation emanci- 
pating the slaves in those States, Vv^hich shall be in rebellion on 
the first of January next, may not be " used as the means" " to 
attain the end" (granting that it may thereby be attained) of 
ending this war of rebellion, and thus of saving our Constitu- 
tion, our government, our Union, and of still preserving for 
ourselves and for coming generations, here and elsewhere, the 
only real Temple of civil and religious liberty in which men 
can worship on earth. You speak of " lawfulness" in this 
connection rather in a moral than in any other sense ; the right 
and power in a legal and constitutional setise, to issue this 
proclamation has already been demonstrated. 

In a document intended, " after study and reflection," " to 
aid the citizens of this republic to form a right conclusion" on 
matters of surpassing magnitude and solemnity — matters im- 
perilling their very liberties, as you state, a religious, scrupu- 
lous regard to truth in every material respect, was, of course, 
to be expected; and departure from truth may consist as well 
in omission and suppression as in direct assertion. I have al- 
ready mentioned that you have wholly omitted, in the state- 
ment of the proclamation, the compensatory part, and that you 
omit to bring forward, except merely incidentally, another most 
material part of it, namely, its conditional, alternative char- 
acter. 

Whether your statement as to the " social condition of nine 
millions of men," has reference to both white and black, or to 
the white only, it is difficult to determine from the context ; if 
it has reference to the white, jon commit a very serious error ; 
for the whole white population of the rebel states (to which 
alone the proclamation and your argument relate), according to 
the last census (1860), does not exceed four and one half 
millions. 

In quoting the opinion of the lamented Judge Woodbury, 
you omit to state that it was a dissenting opinion, concurred in 
2 



18 

by no other Judge, founded essentially, if not solely, on the 
fact assumed by him, that at the time, in question in that case, 
" a state of war " did not exist in Khode Island, where the 
matter arose. In so grave a paper prepared, as you assert, so 
deliberately, put forth under an imperative and resistless im- 
pulse of patriotic apprehension that the liberties of the country 
were in imminent peril, (not from the rebellion, but from the 
acts of the President, designed to crush the rebellion), in such 
a paper, I say, it would seem that we ought not to be terrified 
by " portentous clouds," " gigantic shadows," the phrase 
'' usurpation of power," often repeated, the " loss of his head 
by Charles I." '^ seven hundred years of struggles against arbi- 
trary power," and many other similar appeals, hj modes of ex- 
pression^ to anything but that oalm reason, which enables us to 
"form right conclusions in dark and dangerous times." Much 
less in such a grave document from such a source, should im- 
portant stress be laid on the expression, of an unnamed and 
irresponsible editor of a newspaper, " that nobody pretends 
that this act is constitutional, and nobody cares whether it is or 
not." That this editor was at least a very inferior consti- 
tutional lawyer, is very clear, and that this text from his paper 
should have furnished a peg, on which to hang an alarming 
commentary on the " lawlessness" of the times, is at least ex- 
traordinary, and that lawlessness too, not the lawlessness of 
relels nor of rel)el sympatldzers. 

You ask, in view of the President's proclamation, " Who can 
imagine what is to come out of this great and desperate strug- 
gle ? The military power of eleven of these states being des- 
troyed, what then? What is to be their condition? What is 
to be our condition'?" 

Your questions admit of a ready answer. The United States of 
America are to come out of the struggle, a great, a united, a 
powerful, a free people, purified by the fires of adversity, and 
taught by their tremendous calamities the lessons of modera- 
tion and humility. The 'peojjle of the rebel states, who choose to 
remain in them, are to come out of the struggle as citizens of 
states forming a part, as heretofore, of the United States, and 
with them, and as parts of them, they are in future to enjoy 
the blessings of a well regulated liberty, they having, in the 



19 

mean time been taught a lesson of infinitely greater severity 
than that by which their brethren of the loyal states have been 
instructed. Whatever they have necessarily and legitimately 
lost in material things, by reason of the war they have waged, 
is, of course, lost to them forever ; if their slave property is 
thus lost, it is lost, and that is all that can be said as to that. 
Then " their condition" and " our condition" is to be iii sub- 
stance just what it was before the rebellion, and what it would 
have continued to be but for the rebellion, with this only differ- 
ence, that they and we will have learned the priceless value of 
the Union, and for generations to come treason and rebellion 
will not raise their horrid heads. 

Perhaps you may call this the dream of an enthusiast. Kely 
on it, I speak only the words of " truth and soberness ;" and if 
you are spared for a brief period, you will be rejoiced, I trust, 
to witness their full realization. Rejoiced, I say, because from 
your pamphlet, you would have your countrymen infer, and I 
am bound to presume, that nothing but your intense love of 
your and their country and your agitating apprehensions that 
the "principles of liberty" are greviously to suffer (not from the 
rebellion, but from the acts of the President), has induced you 
to address them. 

You say the " cry of disloyalty " has been raised against any 
one who should question these executive acts. I know not 
whether that epithet has been applied to you ; if it has been, I 
am bound to believe that the imputation was without cause, 
and that you are a faithful, loyal citizen of the Republic. But 
the greatest and the best are liable to err, and I may be permit- 
ted to say, that, however honestly and sincerely you entertain 
the sentiments you express, you have selected an inopportune 
moment for their expression ; and that at this particular period 
of our country's history, your " studies and reflections," your 
time and your efforts, would, to say the least, have been more 
benignly and gracefully employed in presenting to your coun- 
trymen a life-like picture of the real character of this rebellion, 
and in impressing on them with stirring and glowing eloquence 
the momentous duty it devolved on them. You could, with 
perfect verity, have told them, that this war, inaugurated by the 
rebel States, was wholly and absolutely without caxLse : in proof 



20 

of that assertion, you could have stated three facts, so undeni- 
able that tlie hardiest rebel, not bereft of reason, would not dis- 
pute them. 

J'irst.— That on the 1st day of November, 1860, no people on 
the globe were in the more perfect enjoyment of civil and re- 
ligious liberty, of social, personal, and domestic security; of 
more entire protection in the possession and use of all their 
property, of evert/ kind ; and of more material prosperity, than 
the people of the eleven rebel States. 

Seco?ul— That for all these blessings, as great as were ever 
vouchsafed by God to man, those people were indebted entirely 
to that Constitution and that Union which their rebellion was 
undertaken to destroy. 

Third. — ^I'hat from the day of the organization of the Govern- 
ment under that Constitution, in the year 1789, down to the day 
when this rebellion began its infamous and ifnhallowed work, 
there never had been, on the part of that Government, a single 
act of hostility, nor even of unkindness, toward these States or 
their people. 

You should then have pointed out to your " countrymen," in 
language more persuasive and emphatic than I can use, their 
solemn and imperative duty as patriots, as christians, and as 
men, in this hour of their country's suffering and peril ; and you 
should have told them that if these times are, as you say, " dark 
and dangerous," this darkness and this danger have been caused 
by the wicked acts of these rebellious men. In such an address 
to your countrymen, your dedication would have been not 
merely " To all persons who have sworn to support the Consti- 
tution of the United States, and to all citizens who value the 
principles of civil liberty which that Constitution embodies, and 
for the preservation of which it is our only security," but also, 
" to all persons who abhor treason and rebellion against that 
Constitution, and to all who prize the inestimable blessings of 
our hallowed Union, and to all who hold dear the farewell 
words of the Father of his country." 



21 



I had intended, in this letter, to comment on that part of 
your pamphlet whicli relates to the President's proclamation of 
the 24th of September, 1862, but this paper is already suffi- 
ciently extended. It would, I think, be easy to show that the 
dreadful dangers you apprehend are, in truth, to use your own 
terms, "portentous clouds" and " gigantic shadows" of your 
own creation. At any rate you may rest assured, if you and I 
and all others of our fellow citizens, outside of the rebel states, 
shall make honest, earnest, determined efforts for the putting 
an effective end to this rebellion (and that such will be the case 
I, loving my country and knowing the uns])eaka'ble value of the 
stake^ have no right nor reason to doubt), those efforts will be 
crowned with speedy and triumphant success, peace and har- 
mony will be restored to the republic, the " principles of civil 
liberty " will not have snffered, and the bugbears of " usurpa- 
tion," " arbitrary power," and other similar chimeras, which 
excited imaginations and gloomy tempers have evoked, will dis- 
appear forever. 

Had you been an unknown and obscure citizen, any notice 
of your pamphlet would have been supererogatory ; but be- 
cause of the influence calculated to be exerted by anything 
coming from the pen of one who had but recently been the 
incumbent of the highest office in the gift of the Government, 
and who is now in the exalted walks of social and professional 
life, I have deemed it my duty to present these views of your 
argument, and thus "possibly to aid my countrymen" in 
" forming right conclusions " as to its merits and the merits of 
the subject of which it treats. 

I hear that otliers have published answers to your paper. 
jNot having seen any of them, I know not but that I may have 
merely repeated their views j if so, no harm is done ; if I have 
presented any that are new, " possibly " some good may result, 

Kew York, Nov. 28th, 1862, 

Charles P. Kiekland. 



/ 



